
• &70 




KANSAS CONTESTED ELECTION. 



SPEECH 



OF 






HON. W. W. BOYCE, OF SOUTH CAROLINA, 

DELIVERED 

IN THE HOUSE OF REPRESENTATIVES, MARCH 6, 1856, 



On the Resolution reported by the Committee of Elections in the Contested-Election 
case from the Territory of Kansas. 

. 



'b 



Mr. BOYCEsaid: 

Mr. Speaker: I have not had time, since the 
presentation of the majority and minority reports 
from the Committee of Elections, in reference to 
the Kansas contested-election case, to examine 
them carefully, and I shall therefore have to depend 
for a knowledge of their statements on what 1 
heard of them yesterday when they were read 
from the Clerk's desk. It seemed to me that a 
great deal of irrelevant matter was introduced into 
the majority report. Instead of confining them- 
selves strictly to the subject before them, the par- 
ticular manner in which evidence should be taken 
in the case, the committee went into a detailed re- 
cital of outrages alleged to have been committed in 
the Territory of Kansas. It may not have been the 
purpose, but the effect was necessarily to inflame 
the public mind en this agitating question. I shall 
not follow the example set me; although I might 
reply, and very satisfactorily, to the historical 
recital which the majority of the committee have 
made. I might light up my subject with the fires 
of the burning habitations of southern emigrants 
in Kansas, who have suffered at the hands of law- 
less violence; but I do not think it proper to do 
this, because it does not belong necessarily to 
the question before the House. I propose to treat 
the question before us in its naked proportions, in 
reference to the mode in which the committee 
should proceed to take testimony for the determ- 
ination of the right to a seat here, either of Mr. 
Whitfield or his contestant. 

The majority of the committee seem to insist, 
so far as I could understand the report read yes- 
terday, that they could not take evidence in Kan- 
sas, in the present condition of things in that 
Territory; that it was such an unsettled country, 
so wild, and so destitute of facilities for the ex- 
amination of witnesses, that they could not take 
evidence there. But it seems to me they have 
overrated the difficulties in that respect entirely. 

Why can they not take evidence in that new 
Territory, as well as they can in any of the Ter 
ritories of the United States? They have roads; 
they have rivers; they have settlements. Why, 



then, cannot the witnesses be brought together 
there as well as elsewhere? Nobody imagines 
that witnesses could not be examined in Nebraska, 
Washington, or Oregon Territories. Then why 
not in Kansas? But it is said that such a course 
would produce great excitement. It seems to me 
that the committee over-estimates the extent of 
the excitement existing in Kansas. I have no 
doubt that these things arc exaggerated. The 
committee wisely caution us not to listen to all 
the idle reports which we might hear, and at the 
same time they seem to me to give too much faith 
to these rumors, because they appear to believe 
that there is almost a state of war in Kansas. I 
have no doubt that the state of things in Kansas 
has been exaggerated. I have no idea that the 
taking of testimony there would be attended with 
the disastrous consequences anticipated by the 
committee. If I understand their report, they 
say there are no justices of the peace there; and 
there, 1 apprehend, is the place where the shoe 
pinches. 

Mr. HICKMAN. Will the gentleman from 
South Carolina permit me to say a word? 
Mr. BOYCE. Certainly. 
Mr. HICKMAN. It is right that I should 
say that the majority of that committee rested no 
part of their report on rumor, or upon newspaper 
articles. They rested their report, and grounded it 
upon the statement of facts alleged by Governor 
Reeder, and the allegations contained in the proc- 
lamation of the President of the United States, 
and his special message to Congress in reference 
to Kansas. 

Mr. BOYCE. They say that there are no;, 
sufficient justices of the peace in the Territory to 
take the testimony. Here I imagine is the real 
objection the majority of the committee have to 
going into an examination of this case in the usual 
manner. They are unwilling to do it in a form 
which might seem, in any sense whatever, to 
recognize the existing government in Kansas. 
But it seems to me that there is no necessity of 
going into this new mode of proceeding in order 
to avoid that difficulty. The House may guard 



against that difficulty by declaring that the 
facto, shall have the right 

i, thru, stated 
by a majority of the committee foi} this novel 

t"iy. This 
is entirely a new course of proceeding. In the 
\\ hole practice of .tJ aa I have 

r before au- 

thoriz* ! . end for 

: paperB in the case of a contested 

, and that was 

inated at a time of party de- 

lirium. 

Mr. WASHBURN, of Maine. The gentle- 
man will find, ifhe will examine th 
during the P i ifter the 

adoption Of the Constitution, thai the I louse ex- 
gave to the Committee of Elections the 
power to send for pi rsons ami papers. 

Mr. BOYCE. But never since that time ex- 
cept in the case T have mentioned. The House 
38 found th' practice a bad one, and re- 
:d it from the time of the Second Con- 
ntil the New Jersey case came up. Now, 
m reference to this new and unusual mode of 
testimony) if the question were between 
■ no other mode, there might be some reason 

in the proposition of the Committee. But it is 
We have the old mode authorized by 
the act of 1851, and we have another alternative, 
ther day, to send special com- 
3 to Kansas. Therefore the question is 
Hoi between this mode and no other, but between 
the old mode and this new mode. 

li.' hi re are grave objections to this 

mode. What witnesses will you have brought 

here, if you send to Kansas for persons? They 

will !:•• willing witness! s — swift witnesses. Those 

are the very men we do notwanthere. We want 

men who have been attending to their own busi- 

1 tted to fever heat by 

; and who have something 

re upon a crusade to fur- 

Diflh evid mce. !t seems to me that the proposed 

method is the wor mode of obtaining 

e. We should have here only partisans; 

ii the evidence of that portion of the 

community which is calm and dispassionate. Be- 

sides,thi8 mode involves immi -. There 

is no estimating whal the cost .if it will be. Prob- 

100,000 Or more. Once open the door for 

I in this army of witnesses, and 

! of partisan feeling there is no tell- 

e matl r Will < nd. Every man in 

its to take a trip to Washington 

at Government expense will have a budget of 

Hews to untold. 

• me that this mode of obtaining evi- 
one, in examining who is 
entitled to a seat a te from Kan 

h more appropriate if it were a gen- 
> mil ition of all the affairs of Kansas. If 

rl of an investigation, appoint 
1 com 'lit'ee, and n fer to it the 

I confer upon it 
to make 
; 

hinge this indefinite ex- 

littee have failed to 

ins why we should ad 



new plan which they have proposed. The rec- 
ommendation of the committee, if adoptdB, leaves 
them at liberty to examine the whole history of 
. and everything Which has taken place 
there, from the inception of the government down 
to this timn. I do not think that this case should 
give them that unbounded license. It is confined 
ow compass. We ha Mindless 

sea of discovery upon which to take a voyage. 
Our limitsore narrow, as I conceive the qu 

is to me, sir, there is perhaps only one 
i in the case; and that is as to whether 
legality of the action of the Legislature of Kan- 
sas was affected by the Li movingfrom 
the town of Pawnee to the Shawm i 

When this question was taken Up the other day, 
different opinio. is were expn ssed as to the ruie 
which should guide the House in the investigation 
of the case; and I apprehend that there ought to 
be some rille. Wc ought not to pursue this 
matter vaguely and without any landmarks. The 
chairman of the Committee of Elections, if I 
understood him correctly, seemed to think that 
we had the power to proceed in this matter under 
the Constitution, giving us power to determine 
the qualifications of members, &c; but it seems 
to me that this is an entire misconception of the 
matter, because Delegates of the Territories are 
not, accurately speaking, members of this House. 

Again: it was insisted by some other gentle- 
man that, in the investigation of this case, we arc 
absolutely bound to pursue the directions of the 
act of 1851. That, perhaps, is not strictly cor- 
rect either. My own impression is, that the 
act of 1851, though not absolutely binding upon 
the House in this case — because it merely relates 
to the election of. members of the House — is to a 
certain extent bidding as a persuasive authority, 
as a parliamentary precedent, as the sense of 
the House on the important subject as to how 
these i lections are to be investigated. It is not 
merely a question of form as to what rule the 
House should be guided by in its attempt to 
investigate the case; it is in reality a question of 
on the rule which you adopt 
in the investigation of the case will depend im- 
portant consequences, whether we adopt the rules 
laid down by the act of 1851 or by the parlia- 
mentary precedents. Either standard of investi- 
gation will limit the range of inquiry. 

What does the act of 1851 prescribe? The 
act of 1^51 is, it occurs to me, an act founded in 
eminent wisdom — an act which will stand the 
closest scrutiny. That act provides, in the first 
place, that the contestant shall " specify particu- 
larly the grounds upon which he relies in the con- 
test." W'hy does it say " specify particularly?" 
Because Congress understood the evil effects 
which would arise from allowing these matters 
to be based upon general objections; and like 
every other court called upon to investigate 
a subject, Congress required the matter to be 
stated specifically , so that it could proceed under- 
standing!}'. Again: The act further goes on and 
requires the person claiming the seat, in his 

any new facts, to state them "i ." The 

two provisions of 

the act, the pleadin and the 

' ■ 
come here at I -, but a 



few points are developed for examination. And 
the House can understand, the importance of 
this rule at once, because it is obvious that the 
Committee of Elections are facilitated in their in- 
vestigations when the isjwe is clearly made ; other- 
wise, it would be an croiiess task. If the con- 
testant had the right allowed him to plead at large, 
the Committee of Elections would never be able 
to get through the examination of objections 
made without definiteness or specification. The 
act further goes on, and provides how evidence 
is to be taken. It provides means for the exam- 
ination of witnesses, and provides a certain time 
within which witnesses are to be examined, leav- 
ing it to the discretion of the House to extend 
that time. These are the leading provisions of 
the act of 185] ; and it seems to me that it would 
be a great blunder in this House to depart from 
the principles of that act. It seems to me that 
though this act is not, in the present case, tech- 
nically binding on this House, as it speaks only 
of members of the House — not meaning Delegates 
in a strict sense — yet it would be' unwise in this 
House to depart from the rules and principles 
and mode of investigation pointed out by it. 

So much then on this point. There are other 
general features in the case, to which I would 
invite tin' attention of the House, because upon 
them depends, again, the extent of the investiga- 
tion. What is the office of Delegate of a Territory ? 
The delegates 1 .! ip of a Tenitory is a legal office. 
It is not an office which has arisen by custom or 
by the sanction of this House alone. It is an office 
whic.ii has arisen by force of the supreme law of 
the United States governing the subject. In Eng- 
land the king cannot originate a new office with 
fees. This House cannot originate a new general 
office, with or without fees. The office of Delegate 
from Kansas is a legal office. The particular office 
of territorial Delegate originated with the ordi- 
nance of 1787, and the ordinance was carried into 
effect in that particular by the act of Congress of 
1789. By that ordinance it was provided that 
whenever the Northwestern Territory had a pop- 
ulation of five thousand white male inhabitants, 
it should be entitled to a Delegate in Congress, 
and since that time Delegates have been assigned 
to the various Territories by act of Congress. In 
this particular case the office of Delegate from 
Kansas has been created by the Kansas-Nebraska 
bill. The office is a creation of that act. It does 
not arise by the mere will of this House, but by 
the will of all the departments of the Government. 
That I take to be beyond all dispute. 

Again: the Kansas-Nebraska act, giving origin 
to this office, has defined how this officer shall he 
chosen. That question has an important hearing 
upon this case, because that, I take it, excludes 
all pretense of Mr. Reeder to a scat, and all 
questions which might be raised in that connec- 
tion. The act of Kansas and Nebraska says on 
this subject, that a Delegate shall be elected by 
the people of the Territory of Kansas. How? 
It assigns to the people of the Territory a right to 
be repn seated in Congress by a Di legate. But 
how are they to exercise that right? The Dele- 
gate is to be chosen by the will of the people. 
But how is their w ill to Lie manifested? Then- 
will is to be manifested under the law — under a 
preexisting law, not a vagrant, wandering, irre- 
gular, licentious will, but a will to be exercised 



under the forms of^ the law, under the regulations 
of the ballot-box* carried out at a particular time 
and under Specified forms. That is the only way, 
under the. Kansas-Nebraska act, by which the 
office of Delegate of Kansas arises. That is the 
only way in which the office is created, by force 
of the public will of Kansas speaking under the 
law. 

Congress in inserting that principle in the 
Kansas bill has not done anything new. It has 
only implanted in that bill a great American prin- 
ciple — that principle which lias existed through- 
out all of our history, and on which our institu- 
tions rest — the principle that the public voice and 
the public will are to be obeyed and respected, 
under the forms of law — the principle that the 
people are everything while they speak under the 
law, and that they are nothing while they speak 
against or over and above the law. It was the 
peculiar boast of our ancestors that they brought 
with them from England the institutions of the 
mother country, and the. chief of ties..' institutions 
was the right of the people to lie heard under the 
forms of law — not the right to licentious liberty, 
but that they should be allowed to govern them- 
selves under forms of law. Our ancestors, sir, 
might have made a greater boast than that — that 
they not merely brought from the mother country 
the institutions of the mother country, but that 
they brought with them the capacity for free in- 
stitutions — the power to live, not under licentious 
liberty, but under the law. 

It is a peculiarity of the Anglo-Saxon race, and 
a peculiarity of the American people, that they 
are the only people who have demonstrated their 
capability for self-government — who arc able to 
live under and in subjection to the law. There 
is no other race that can make their own laws, 
and then live undbr the laws they have themselves 
made. 

The people of France have, four or five times 
during the present century, had the opportunity 
to govern themselves, but they have, in every 
instance, failed, because they have" never been 
able to live under their own laws. Look at the 
miserable spectacle of the South American Re- 
publics. Do they not present a wretched parody 
on free institutions? They have never been able 
to govern themselves, because they have never 
learned to carry out the great principle of the 
people speaking only in obedience to law. 

Why, sir, we have a memorable instance of 
the unwillingness of the American people to go 
beyond the law, in the conduct, of the Puritan 
fathers of Massachusetts. After the battle of 
Lexington, while their blood was fevered with 
the wounds of battle — while their ears were daily 
vexed with British drums, I irarrogant 

reveilles with every recurring ^i'.n, on Boston 
Common, what did they do? '■' >lied to 

the Congress of theConii deracy, then assembled 
at Philadelphia, to ask their advice as to what 
step they should take in the modeling of their 
government. So tenaciously did they adhere to 
the law, so reluctant were they to violate the law, 
thai even in that extremity, '..'.sen their blood was 
up and the sword drawn, they paused, hi the 
sincerity of their republican simplicity, and ap- 
plied t,, the national Co .It was 
a sublime spectacle. nourished 
no factious disorganizes then. I say this was 



a sublim . It. showed what manner of 

men ii. re man 

men — pf 

. . 

bills, bul with a remarkable 

fcharac- 

. above all praise. 

nducl of the m in of Massachusetts in the 

old< n time furnish aple that their de- 

scendai not do amiss to follow. 

This ' iple, that the will of the people 

. me under the 

I lourl of the United 

the memorable pro- 

(•••i-diii d with the Dorr rebellion. In 

lie q - at of the 

the law, or whether they 

should r and through 

the lav. . . all familiar with the decision 

ourt on that occasion. I refer 

to it for the purpose of alluding to the position 

of Mr. V ion; a voice which 

Massac! 'ways 1)0 willing to hear, 

as his is the greatest name emblazoned on the 

!■, iii his argu- 
i . laid down the p 
which I i contending for, that tl 

of the people could only be heard through the reg- 
ular fori . of law. But 1 will let Mr. Webster 
Speak for himself. Men of Massachusetts, listen 
to his . ! id, he yet liveth: 

Mr. \ the Rhode Island case, said: 

o, then follow two other great principles of 

■• I. Tl . ball be guarded. 

1 gainst fraud; and 

•".'. 'I shall be prescribed 

by previous law.it.- qualifications BhaU be prescribed l>y 

; lw, iii'' time and pi i :;i be pre- 

its exercise and 

under wii >m officers of the law) 

' n i then again the r suits arc to be 

i by some certain rule, by some 

known pi 

o things inaj I 
entitled tp vote may vote ; second, that his vote maybe 
: id, and so he 

.. itli his fellow-citizens. 
"■In the political power through represent- 

%— hv nevr nave known anything, 
I I 
■cribed forms of law. When we depart from that we 
shall '.. American track as th 

a from the track of the sun." 
These are noble words; they have the ring of 
id like Massa ihusetts of the 
olden ,on that occasion, 

no i. ly took that position 

ughoul life; for ifthere 
:uliar h hy of Mr. 

"VVi bi 
the law, i nail occasions, thai the will 

of thi it, must be 

a wii! 1 under law, and by forms of law. 

iih: and it is in that aspect only that 
li VOX Dei. 

y,ow , 1 say this is no new principle applied to 
the '1 tie of 

that Ti rritory, when they eleel a Delegate, to 
mak known under the forms of law. 

The 1 , Ion which 

the American people and the American statesmen 

have taken, at all times and upr >n all occasions, 
that the will of the people is to be expressed 

under tonus of law, and utterly repudiating that | 



liberty which would trample all law 
. foot— the last Congress required that the 
I'vansas, in declaring who should be 
u ir will known under 
he law. This is the great principle 
upon which our theory of government rests: to 
rdjtion. When we divorce ourselves 
y and quick-recurring 
despotism — we canonize the sword, and prepare 
and our posterity to pass 
; fire to the- grim idols i jcord. 

1 take it that those two propositions are as cli :.r 
as the noonday sun. The (I from Kan- 

must have 
had his election under law. It is idle for any 
man to pretend to claim his seat here in violation 

The claim of the sitting Delegate [Mr. Whit- 
field] seems to me very plain — jrritl 
How lie claims it under 

ate of the Governor, by virtue of an 
Id under tlie authority of the Legisla- 
ture, which Territorial Legislatur din 
pursuance of an act of Congress, and deriving 
their authority to act fromCongrei 

fore, to the fountain-head for his commis- 
sion. His title, therefore, is what the lawyers 
call a good paper title, unexceptionable, unless 
it can be attacked by evidence outside of the 
record. 

What are the objections raised to his title? 
The objections are twofold. First, the invalidity 
of the law under which h ted; and, 

second, that he was elected by illegal votes. I will 
commence with the last first. The first point I 
is, that this objection is not sufficiently spe- 
cific. It does not comply with the act of 1851, 
which requires the contestant to " specify particu- 
larly" the grounds of his objections. It is not 
a compliance with that act to-day, that A B,or C 
D, got illegal votes, lint the act of 1851, justly 
interpreted, requires that the names of the illegal 
vbters should be set forth. If, then, the act of 
1851 is to lie binding and operativeupon thisques,- 
tion, that objection which Mr. Reeder raises is 
at an end, because it is not sufficiently specific; 
and I think, as 1 have said before, that we ought 
to be guided by that act. Bui it' we are not to be 
! by that act, we are not, tin ni'fr, to be 
guided by our own vain imagininj ire to 

aided, then, by parliamentary law — by the 
ral law of Parliament; tor there is a general 
f Parliament, as Blackstone says, known but 
to few, but y< t known to the Parliament — a law 
exiptin Whataretbi precedents 

on t!i i ii will find, by referri; 

the < lontested El this \ ery point 

has been coi - rmim d. In the case 

Of John C. Vanillin, (page 1 12,) it was held that 

ion that votes v. sons 

not qualified to vote is defective, unl se it show 
then seof 

from Missouri, (Con- 
it was held that ■' a aen< ral 
averment in the notice contesting an .lection 
that i ieiit, and 

the names of the perso, to must also be 

staled." 

The objection was, as it is here, the illegality 
of voles. .But the House, upon tin adoption 01 
the report of the committee, held that a general 



specification was insufficient; and I hold, without 
referring further to authorities, that the general 
specification in this case is also insufficient. 

But I do not rest upon this objection. I ap- 
proach now the very marrow of the case on this 
point. What is the objection? That there were 
illegal votes given. Is it not obvious, from the 
slightest examination, that that objection has no 
validity in it, and that it is unnecessary to go into 
a minute examination of it ? "Why ? Because it 
is nol l that all the votes cast for Whit- 

field on that occasion were illegal votes. Well, 
suppose fifty, or one hundred, or five hundred, or 
even one thousand of the votes cast were illegal, 
that does not alter the case, unless those who did 
not vote, be ing equal in number to the legal voters 
actually voting, were kept away by force. If 
they were restrained by duress or reasonable 
apprehensions of violence from going to the polls, 
and the opposite party did go, then the election 
under those circumstances would be void. 

Cut, the case does not stand on that ground. 
They did not stay away from apprehension of 
violence; they stayed away on the calculation 
that the law fixing the election was void. They 
placed tiieir case on that cast, and they must 
stand the hazard of the die. They stayed away 
because they would not acknowledge the validity 
of the law. Therefore, let them stand to their own 
ground ; which was, that the law was invalid , and 
not that the votes were illegal. There is nothing 
in this point which merits investigation. 

I now approach what is considered the de- 
batable ground in the case, but I think 1 see my 
way clear. 

It is said that the election law under which 
Whitfield was elected was invalid, and this on 
two grounds: 1st, because the Legislature was 
elected by illegal votes; and, 2d, because they 
moved to Shawnee Mission. 

In reference to the first ground, I object to 
the jurisdiction of this House to determine the 
validity of the election of the members to the 
Territorial Legislature, because I say that the 
Kansas bill appointed a special forum to determine 
that question — the Territorial Legislature itself. 
I do not say that the act expressly, in so many 
words, confers this power; but that it is a power 
naturally implied and necessarily flowing from 
the formation of a legislative power, in the ab- 
sence of restraining words. 

All of our parliamentary history in the mother 
country and m America, the practice of all of our 
Legislatures — Federal, State, and Territorial — 
without a single exception that I am aware of, 
shows that the invariable rule has been for every 
legislative body to judge of the returns and qual- 
ifications of its rqembers. It is the common law 
of all our legislative bodies, and inheres in them 
as naturally as it does in a woman to say who 
shall be her husband. The authorities upon this 
subject are numerous. I annex a few: 

" It is obvious that a power must lie lodged somewhere 
to judge of the elections, I qualifications i 

mcrab House composing the Legislature; for 

othcrn is e there would be no certainty as to who were legit- 
iraai. ly chosen members ■ indeed, i lections would become 
under such circumstances it mere mockery; and legislation 
the exercise of sovereignty by any self- constituted body. 
The only possible question on such a subject is as to the 
body in which such a power shall be lodged. If lodged in 
any oilier than ihe legislative body itself, us ind :p mdence, 
ita purity, and even its existence and action, way be de- 



' strayed, or put into imminent danger. No other body but 
itself can have the same motives t > preserve and perpetuate 
attributes; no other body, can be so perpetually watch- 
ful to guard its own rights and prh ileges from infringement, 
to purifj and vindicate its ovi a cl 

the rights and sustain the free choice 1 of its constituents. 
•Accordingly, the fioieer hat i in the ic^is- 

latirc body by the uniform practice of Kngland and Jimei ica." 

i —Story. 

" The whole of the law and custom of Parliament has 
its original front this one maxim, 'that whatever matter 
arises concerning either House of Parliament ought to be 
examined, discussed, and adjudged in thai House to which 

it relates Hence, for instance, the 

; irds will not suffer the ( Ib'mmons to interfere in si 

1 action of a Peer of Scotland ; the Commons will not 

. allow the Lords to judge of the election of a burgess ; nor 
willeitEer House permit the subordinate courts of law to 
examine the merits of either ease. But the maxims upon 
Whi6h they proceed, together with the method of proceed 

i ing, re'st entirely in the breast of Parliament itself, and are 
not defined and ascertained by any particular stated laws.'- — 
2 Blackstone, see. 163. 

I "The two Houses must decide according to the estab- 
li tied law of Parliament." — Ibid. 

•• Each House is made the sole judge of the election, 
returns, and qualification of its members. The same power 
is vested in the British House of Commons, and in the 

| Legislatures of the several Slates; and there is no other 
body known to the Constitution to which such a power 
might he safely intrusted. And as each House acts in these 
casiee in a judicial character, its decisions, like the decisions 
of any other court of justice, ought to be regulated by known 
principles of law, aiid strictly adhered to for the sake of 

| uniformity and certainty." — Kent. 

Such being the common law of legislative bodies 

under our system, we must suppose that Congress 

acted under this knowledge, and intended to confer, 

! and did confer, this power on the Territorial Le- 

i gislature of Kansas. I assume this to be a fact, and 

I submit that the legality of the elections of the 

j Territorial Legislature has been authoritatively 

i passed upon by the appropriate and exclusive 

tribunal, arid that it is not competent for us now 

to go into this question. 

But it seems to me, of all objections, this is the 
last Governor Reeder should have raised. Did 
he not give certificates to two thirds of this very 
Territorial Legislature? It strikes me I have 
heard so. Why, sir, is it not the most extraor- 
dinary spectacle that we have ever' been called 
upon to behold? Is there a spectacle in the history 
of party politics in the mother country, or in our 
own country, equal to it? Was not Governor 
Reeder the Governor of Kansas ? Was he not 
bound by his oath — an oath registered in heaven 
— to exercise and perform his duty justly? And 
did he not, in the execution and performance 
of that duty, give certificates to two thirds of the 
members' of the Kansas Legislature? Does it, 
then , lie in his mouth now to undo all that ? Why, 
sir, he must have estimated the intelligence of 
members of this House very low indeed, if he 
thinks we can take the excuse from him, that he 
did not know the ii the illegality of this election, alia 
that he only acquired the knowledge afterwards. 
Why and how was it that he did not know it? 
Was he not on the ground? Had he not cogni 
zance of everything? Where was he that he did 
not know of the invasion of the Missouri army, 
of which we hear so much now ? And if he did 
know these things which he now testifies to, he 
was a traitor to his country, to his mission, to 
history, in giving these men their certificates, 
knowing that they were not entitled to theirseats. 
fie should rather have dared every extremity, 
have retired under the guns of Fort Leavenworth, 
or perished by the swords of assassins, than thus 



6 



to have ignored his high trust. In charity, I 
must presume these things did not exist, but that 

lent too facile an ear : 
ui the tales of inflamed partisans. 

I ubmit that Governor Ileeder is estopped from 
raising this question. 

Bui it is said that Governor Reeder should 
be estopped because he presents himself in a rep- 
resentative capacity, speaking for certain of the 
people nf Kansas. But I submit that, what 
fore.' tie re might be in this idea, abstractly, it 
lias no application to Governor Reeder 's case, be- 
cause those whasen thim did not act under the' law, 
lint in viol iiion of the law; and by such irregular 
action cannot impute any representative character 
to him. 

As to the second objection, it is said that the 
Jaw is void, because the Territorial Legislature 
removed their sessions from Pawnee City to 
Shawnee Mission. At the outset it is evident 
that this is only a technical objection, and is not 
the mod-' in which 1 think we should consider the 
qui st ion . We should not look at a greal question 
>v< rnment, affecting, as ibis consequentially 
does, the entire political and social fabric of a 
new and rising community, in the same way that 
a lawyer would a demurrer to a special (ilea iu 
abatement. We should look at it in the light of 
high statesmanship. I say this, not because I 
deprecate investigation, for I do nut. I think the 
subject will bear the closest and most technical 
scrutiny. 

W h lis the objection to the removal of the ses- 
sion of the Li gislature from Pawnee City to 
ion? If gentlemen will examine, 
ihry will and the law bearing on the case in live 
or six paragraphs, which I annex : 

1 lie persons thus elected to the Legislative 
iblj shall meet ut such place as the Governor shall 
appoint. " 

f»Seo.84. The legislative power of the Territory shall 
extend t" ;'■!! rightful subjects ol legislation, consistent with 
the Constituiion and the provi lionsof this act." 

n ml e hereby lo sated tem- 

porarilynt Fori Leavenworth." 

■ >. in the event that the Secretary of War shall 
de i.i tin onsi nt with the interests of the military ser- 
!it portion of the military build- 
ings ai Fort Leavenworth for the use <>f the territorial 
government of Kansas, the sum of twenty live thousand 
dollars shall be, and in that contingency i> hereby, . 

■i in <>i' i lie buildings tor the use ofthe 

of the Territory of Knnsas, to be expended under 
pernor of said Territory." — j&ctof 
i- .'. p. 582. 

'."i.OOO for the continuance and orec- 
i use ofthe Legislature ol K: 
t-' be exp "i led undet th • dii iction of tie 1 Go\ ernot 

■ ley. and the money heretofore appropri- 
ated, >li ill not in' expended until th'' Legi lature of said 
Territory shall have fixed bylaw the permanent seat of 

' .lie. it." — let Of 1 

It is admitted that the Legislature had 
establish a permanent seal of government; that it 
had a right to make a temporary seat of govi rn- 
ment unlet 'ii was inconsistent with the 
Kansas-Nebraska ict. tr insistency is inferred; 
and it is contended that Fdrt Leavenworth was 

the only place where the Legislature could i t 

other than where the Gover ' might assemble 

them until a permanent seat of government 
established. But this, it strikes me, is a great mis- 

ption. Why? Gentlemen overlook this 
important fact, that there was a i nt in 

is for a year be'fore thi I . t — .a 

government intended by the act. The Governor , 



id tin Legislature. Hi was the 
government until the Territorial Legislature was 
called together. 1 Ic had a great mission confided 
to him. To him, as to si Pygmalion, 

was given the high trust to bid a beautiful, 
fabric rise out of chaos. He had a noble mission 
given t-i him — a mission which has made the 
names of Solon and Lycurgus immortal. It was 
a mission which, if well performed, j 
a place in tin- pantheon of history; but if falsi- 
fied, subjected him to the reprobation of impartial 
history. 

The Governor, then, was the government of 
Kansas. He was as effectually the State as Louis 
XIV., when lie uttered those imperial words, "1 
am the State." There was devolved on him the 
duty of causing a census of the inhabitants and 
qualified voters, appointing the times, places, and 
manner of holding the first elections, declaring 
tie' number of the members of die Legislature, 
t'i certifying as to who might appear to be elected, 
and appointing the tine and place ofthe first meet- 
ing of the Legislature. lie bad the doing of 
everythir ry to launch this young ship of 

State nn its -reat historical voyage. Well, sir, 
it was obligatory on him to locate his seat of gov- 
ernment, at Fort Leavenworth — for how long? 
Forever? No; but temporarily. What does tem- 
porarily mean? A shorl time. It was the duty of 
the Governor of Kansas in the beginning to locate 
f ">'.< nnnent temporarily, " tor a short 
time, "at Port Leavenworth. He did so; and the 
seat of government was there for some two months. 
Not finding proper accommodations there it was 
removed by him to the Shawnee Mission. Now, 
if, whi n th" Territorial Legislature 
bled, and while they were passing a law for the 
! of the scat of government from Pawnee 
City to Shawnee Mission, it was objected that 
they had no right to pass such law — that it would 
be inconsistent with the provision of the Kansas- 
Nebraska act, making Fort Leavenworth a tem- 
Eorary seat of government, would it not have 
eeu a satisfactory answer, if it were shown that 
I of government bad been temporarily at 
Fort Leavenworth, that the act had 
in that particular — that.it had had its full efficacy? 
It sej ins to me this view puts an end to all diffi- 
culty. 

The Kansas act designated Port Leavenworth 
as the seat of government for a "short time;" 
that is, temporarily. The' Governor did conform 
to the act in this particular. Fort Leavenworth 
was tb.e seat of government for a short time, .and 
thus the act having been obeyed, and had its 
discharged, spent, complied 
with, exhausted, by the time the Legislature 
assembled, and they, therefore, in removing to 
Shawnee, did not trench on its provisions. I 
put this part of the case upon tic ground 
that the seat of government was at I'url i 
worth for a " short time." There is nothing in 
that pretense, it strikes me, in a logical point of 

view. 

advance: It will be found that there isan 
important modification made by Congress in ref- 

of government bi 
rily at Port Leavenworth. That place was first 
ifterwards appropriated 
money • I ions for the Legis- 

lature there, in case the military buildings could 



not, in the opinion of the Secretary of War, be 
spared for the use of the Territorial Legislature. 
Congress subsequently,a< the next session, passed 
an act appropriating $25,000 additional to be ex- 
pended in providing public buildings at the scat 
of government; butwith a proviso, that no money 
should be expended except at the permanent seat 
of government. What, then, was the condition of 
things? The Legislature could not go to Fort 
Leavenworth, because the Secretary of War said 
there were no buildings there to spare, and Con- 
gress had subsequently passed an act forbidding 
the appropriation to be expended except at a per- 
manent seat of government. Was not this a vir- 
tual abrogation of the clause establishing the seat 
of government "temporarily" at Fcrt Leaven- 
worth? 

Well , sir, 'when you go one step further you see 
that this very act gave»the Governor power to call 
the Legislature together at " such place" as he 
should think proper. Does not that fact justify 
the construction which I put upon the act, that 
the seat of government was to be a short time 
at Fort Leavenworth, and that after that time it 
should be at such place as the Governor thought 
fit to call it together, and as the Legislature might 
then determine ? It seems to me that that clause 
gives great force to my construction. 

Again, in the same act, the Governor of Ne- 
braska is authorized to call the Legislature for its 
" first session" atsuch place as he thinks proper. 
For its "first session!" An important difference. 
Why this difference between the two provisions, 
unless it was, that in the case of Kansas they in- 
tended to leave to the Legislature some latitude 
of action in case the Secretary of War should 
decide that there were no suitable buildings for 
their accommodation at Fort Leavenworth ? 

It is said that, in order to render legislation 
legal, the Legislature should remain at the scat 
•of government. I repudiate that idea; I deny that 
the legislative authority is inoperative unless it is 
exercised where the seat of government is estab- 
lished. It is absurd in the nature of things, and 
it is contrary to all our practice and all our his- 
tory. Even in England, where forms are so 
rigidly adhered to, Parliament, which regularly 
meets in London, has in some instances removed 
its sittings to other parts of England in cases of 
emergency. The Congress of the Confederation , 
upon two memorable occasions, left the city of 
Philadelphia, and continued its legislative func- 
tions at another point. Under the present Consti- 
tution, Congress met for years in Philadelphia. 
Instances in our State Legislatures are numerous. 
The Virginia Legislature, when the English army 
were present in great force, removed to Char- 
lottesville. The Georgia Legislature were migra- 
tory in the Revolution ; and , as the gentleman from 
Georgia [Mr. Stephens] said, a few days since, 
they went into North Carolina. 

The principle contended for would vest the 
legislative power of the Government in the mere 
place. It is not so. It resides in the men com- 
thc Legislature. I say there is nothing 
The law which governs this mat- 
ter is the law of common sense, and that 
it is the duty of th' Legislature to met 
■ .men;, and 

The matter of public coir 
controls the subject. No \ , sir, if you will take 



the trouble to look at the history of Kansas, you 
will find that the Territorial Legislature acted 
with the utmost discretion. The authority which 
I have in my possession shows that the place 
where they met was utterly unsuitable for that 
purpose. It had no press, no mail, even food 
and houses deficient, and the cholera was in their 
midst. Why, then, should they stay there? 
Why should they confine their sittings to Pawnee 
City? Was there any particular merit in Paw- 
nee ? I understand some gentlemen to say that 
Governor Reeder held lands there. I have no 
objection to Governor Reeder making as much 
money as he could; but is that a reason why the 
Legislature should confine its sessions there? 

Well, sir, where did they go to? To the very 
place where Governor Reeder himself had gone 
after leaving- Fort Leavenworth, the only suit- 
able — almost the only possible — place, it is said, 
in the Territory. It seems to me, then, that there 
is nothing in the idea that the Territorial Legisla- 
ture of Kansas was invalid because of the want 
of authority in the Legislature to change the 
place of meeting. 

But, sir, we are not left alone to mere argu- 
ment upon this subject. We have authority 
upon this point. The act of Congress gives to 
the President of the United States, in case of in- 
surrection, power to determine which is the gov- 
ernment. The President, in pursuance of that 
authority, has determined which is the govern- 
ment of Kansas; and, in so doing, necessarily 
recognized the validity of the laws of the Territo- 
rial Legislature. 

The decision of the President on this subject 
is conclusive, and ought to be to preserve peace. 
If one branch of the government disregard the 
decision of another branch, and urges one portion 
of the people to rebel, and put at defiance the 
government recognized- by that branch of the 
government to which, under the general law of the 
United States, has been deputed that authority, 
can we have peace? The Executive of Kansas, 
the courts of Kansas, the judges, and the Attorney 
General, all recognize the validity of the legisla 
tive authority. The Senate of the United Slates, 
one of the most august legislative tribunals in the 
world, has recognized the validity of this Terri- 
torial Legislature indirectly by the confirmation 
|] of the appointment of Governor Shannon, who 
had sustained that legislation. Not only that, but 
i it is deducible from the decision of the Supreme 
Court of the United States that it would be found 
|! ready to recognize it. Why? Because, in the 
>'■ celebrated case of Luther vs. Borden— tin; Rhode 
., Island case— i-thc Supreme Court of the United 
ij States said it was for the President, under the 
|| act of Congress, to determine which was the valid 
power in the State. The same principle applies 
to a Territory; and therefore I say that, in this 
case, the Supreme Court would necessarily ac- 
quiesce in the decision of the President as one of 
the great coordinate branches of the Government 
on whom this great power was devolved. 

Not only that; but we have the authority — if I 
understand the matter correctly — of the Commit- 
tee o'h Territories, at the head of which the gen- 
tleman from Pennsylvania [Mr. Grow] stands, 
on this point. Did he not, the other day, intro- 

tain laws of 
the Territory oflfcuisas ' Why rep !flj them UOfeflS 



LIBRARY OF CONGRESS 




Ihey were valid laws? The gentleman from In- 
1 Mr. Dunn,] with that quickness of per- 
ception which characterizes him, at once saw the 
point. 

Mr. GROW, (interrupting.) Will the gentle- 
man from South Carolina allow me? 

Mr, BOYCE. By-and-by. We have, I say, 
all these combinations of authority. Now, who, 
with this array of authority s, and an 

validity of that legislation? 

So much for this branch of the case. Now, 
in regard to the claim of Governor Reedcr. 1 
listened with great attention, Mr. Speaker, to 
the report of the majority of the Committee 
of Eli ciions, and I was very glad that I did not 
hear anything in it which seemed to look as if I 
the majority were disposed to sustain Governor 
Reedcr 's claim to a scat here. I was glad of it, 
because [thought it indicated a sense, of justice on 
the part of the majority of the committee which 
1 would he sorry to see them want. It shows ' 
that, although party zeal may inflame men's 
minds, yet there is a point at which all hut the 
worst men will pause. If this were not such a 
serious matter, it would be absolutely amusing 
to think of the idea of Governor Reeder claiming 
a seat on this floor under the terms by which he 
claims it. But it is, perhaps, too serious a matter 
to laugh at. It was said by some one of anti- 
quity, that he wondered how two of the augurs 
who prophesied in the Roman temples, could meet 
each other without laughing in eachothi rs' faces. 
And so, if there be members on this floor who 
urge that Governor Reeder is entitled to . 
I say if there be such, I do not know how they 
can meet and restrain their laughter. 

It is not nee. ssary to go beyond the very me- 
morial which Reeder presented, to show that he 
has no claim to a sent here. On what ground 
does he object to the right of Whitfield on this 
floor? On two grounds — the invalidity of the 
law, and the illegality of voters. Put in a log- 
ical form, the argument is this: No man, says 
Reeder, can have a right as Dele-ate from Kan- 
Baa unless he be elected under a valid electoral Law: 



016 087 991 9<» 

Whitfield was v.~~ — .. 

oral law, therefore, he has no right to a seat 
But, sir, there is a stern logic in truth which no 
man can overcome — which appeals to the 
of all honest men; and which cannot I e d nied, 
refuted, or trodden down. Apply that formula 
rnor Reed er's case. Take his own logic: 
" No man has a right to a seat as a Dele gate from 
Kansas a lid elec- 

tion law: ( ■'" ler was nol el i •< d under 

any law; therefore, Governor Reeder has no right 
to a seat on this floor. " It would seem, sir, that 
no member could advocate Governor Reeder 'a 
right to a seat on this floor. So far as it may be 
supposed to be necessary to investigate Mr. Whit- 
field's rightto a seat, and to take the proper course 
to obtain testimony, I shall have no objection. 
But, sir, as to Governor Reeder's right, it is 
wasting time to talk about it. Therefore, 
as it may be designed to examine witnesses on 
this point, it would be a waste of time. 

I recollect in English history, when Lord Clive 
had subjugated some unfortunate prince in India, 
whose palace, full of barbaric gold, he occupied, 
that, from his alarmed and Supplicating prisoner he 
only took for his private use a million of dollars. 
Afterward, when be returned to England, and 
when an investigation into his conduct was called 
for, some member of the committee brought up 
this charge against him. Clive, only remembering 
how much more he could have taken if he had 
wished, could not contain himself, but springing 
to his feet, exclaimed, with all earnestness and 
sincerity, "My God, Mr. Chairman! when 1 
think of what I could have taken, 1 am only 
astonished at my own moderation." 

But, sir, I very much apprehend, that when the 
excitement of the occasion passes off, and reflec- 
tion and calm thought takes its place, that Gov- 
ernor Reeder will not have the same consolation 
Lord Clive had. Unlike him, when he looks 
back to the time and the circumstances under 
which he claimed a seat here, he will not be able 
to say that he was astonished at his own moder- 
ation. 



Printed at (he Oifiee of the Coiio'iessiuiial Globe. 



